State v. Gulley

• Citation: 41 Or. 318,70 P. 385
• Parties: STATE v. GULLEY.
• Decision Date: 27 October 1902
• Court: Supreme Court of Oregon

70 P. 385

41 Or. 318

STATE v. GULLEY.

Supreme Court of Oregon

October 27, 1902

Appeal from circuit court, Linn county; George H. Burnett, Judge.

James Gulley was convicted of selling liquor to a minor, and he appeals. Affirmed.

An information having been filed against the defendant, James Gulley, charging him with the crime of selling intoxicating liquor to a minor, he entered a plea of not guilty, and, a trial being had, the court, over his exception, charged the jury, in effect, that guilty knowledge by the defendant in respect to the minority of the person to whom the intoxicating liquor was sold is not an element of the crime that the defendant's ignorance of the fact of such person being a minor is no defense; and that, if they should find beyond a reasonable doubt that the defendant sold intoxicating liquor to a person who, at the time, was not 21 years old, they should find the defendant guilty as charged. An exception was also taken to the court's refusal to give the following instruction: "I instruct you in this case that if you find from the evidence that the defendant in making sale of the liquor to the minor, as charged in the information, had no knowledge of such person being a minor and that after the exercise of proper caution, and acting in the reasonable belief that the purchaser was of full and lawful age at the time of such sale, and made such sale as charged, although said person was in fact a minor, you have a right to take these facts into consideration, and, if you should so find, your verdict should be for the defendant. If you should find from the evidence that at the alleged sale of the liquor as charged in the information the defendant honestly believed from the appearance of the minor and his answers to questions touching this subject that he, the said minor, was of full and lawful age, and that the defendant under all the circumstances, used reasonable and due diligence, such as a prudent man would use, to ascertain the age of said purchaser, and after doing so was honestly deceived, you will find him not guilty." The cause being submitted, the following verdict was returned: "(1) That on the 1st day of January, A.D. 1902, in Linn county, Oregon, said defendant, James Gulley, sold and delivered to said Hreinhold Zimmerman four quarts of whisky, the same being intoxicating liquor, and received therefor from the said Hreinhold Zimmerman the sum of $3.75. (2) That said Hreinhold Zimmerman, on the 1st day of January, A.D. 1902, was only nineteen years of age, and is a young man and a minor. (3) That before selling said whisky to said minor said defendant, James Gulley, asked said minor his age, and said minor replied to the effect that he, the said minor, was then twenty-one years old. (4) That said defendant honestly believed said minor to be over the age of twenty-one years at the time of such sale, as charged in the information." Based upon this verdict, the defendant was sentenced to pay a fine of $50, and to stand committed until such fine was paid, from which judgment he appeals.

J.R. Wyatt, for appellant.

D.R.N. Blackburn, Atty. Gen., and J.N. Hart, Dist. Atty., for the State.

MOORE C.J. (after stating the facts).

It is contended by defendant's counsel that the court erred in charging the jury as indicated, in refusing to give the instruction requested, and in rendering the judgment complained of. The statute for the violation of which the defendant was charged is, so far as deemed applicable to the case at bar, as follows: "If any person shall sell *** any intoxicating liquor to any minor in this state, *** such person shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished," etc. Hill's Ann.Laws Or. § 1913. It will be observed that this statute does not expressly make the vendor's knowledge of the purchaser's minority an indispensable ingredient of the crime of selling intoxicating liquor to him, and hence the instructions given and refused and the special findings of the jury present the question whether honest ignorance, or mistake of fact, in respect to the age of the purchaser constitutes a valid defense to an information charging the commission of such crime. An irreconcilable conflict of judicial utterance exists in respect to the question presented by this appeal. It has been held under statutes like ours that no crime can be committed in the absence of a criminal intent ( Faulks v. People, 33 Am.Rep. 375); and that, where intoxicating liquor is sold to a person within the prohibited age by a vendor who exercised special caution and diligence to discover whether the applicant had attained his majority, and satisfied the jury that he made an honest inquiry to ascertain the truth, and that he reasonably believed the purchaser to be of age, a finding to that effect relieves him from criminal responsibility ( Farrell v. State, 30 Am.Rep. 614; Farbach v. State, 24 Ind. 77; Rineman v. State, Id. 80). On the other hand, it is held that a mistake of fact in respect to the...